December 13, 2018

Archives for November 21, 2018

Happy Thanksgiving from CBA-CLE!

We at CBA-CLE would like to wish you a very happy Thanksgiving!

In honor of the holiday, our offices will close at 3 p.m. today. We will reopen at 8 a.m. Monday morning. You can still order books, register for seminars, and order homestudies on our website, cle.cobar.org.

Happy Thanksgiving!

Colorado Court of Appeals: District Court Did Not Completely Discharge Mandate in Taylor Ranch Case Because Identification Process Was Not Comprehensive

The Colorado Court of Appeals issued its opinion in Cielo Vista Ranch I, LLC v. Alire on Thursday, November 15, 2018.

Real Property—Public Lands.

Fifteen years ago, the Colorado Supreme Court remanded this case to the district court with instructions to “identify all landowners who have access rights to the Taylor Ranch.” In 2004, the district court began identifying and decreeing access rights for landowners in the San Luis Valley whose land was settled by 1869. From 2004 until 2010, the district court relied on the best available evidence to decree access rights for individual landowners without requiring any landowner to come forward to assert a claim (the opt-out process). After 2010, the district court decreed access rights for only those landowners who came forward to assert claims (the opt-in process). In October 2016, the trial court issued a final order that certified all prior orders, adjudicating 26 access rights for landowners as final and appealable pursuant to C.R.C.P. 54(b). Remaining landowner claimants were not foreclosed from coming forward in the future.

Appellants in this case are CVR Properties, Ltd., Jaroso Creek Ranch, LLC, and Western Properties Investors LLC, the owners of Cielo Vista Ranch and other properties that were once known as the Taylor Ranch (the Ranch) (collectively, Ranch Owner). Appellees are landowners in Costilla County whose rights to access the Ranch to graze livestock and gather firewood and timber were decreed through the remand proceedings.

On appeal, Ranch Owner challenged the trial court’s implementation of the supreme court’s mandate on remand. The opt-out proceedings on remand from 2004 through 2010 were largely consistent with the mandate. But as to the opt-in process from 2010 through 2016, the district court did not completely discharge the mandate because that portion of the identification process could have been, but was not, comprehensive. The trial court mistakenly concluded that it was bound by the law of the case doctrine to implement an opt-in process during the last phase on remand.

The October 2016 order was reversed to the extent it requires any remaining landowners entitled to access to the Ranch to come forward. The case was remanded for the trial court to identify all remaining owners of benefited lands and adjudicate their rights. In all other respects the order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Trial Court May Only Increase Level of Distribution of Schedule II Substance Felony Based on Equal or More Severe Felony

The Colorado Court of Appeals issued its opinion in People v. Jacobs on Thursday, November 15, 2018.

Criminal Law—Uniform Controlled Substances Act—Sentence Enhancer—Distribution—Conspiracy to Distribute—Prior Conviction—Habitual Criminal—Double Jeopardy Clause.

A jury convicted defendant of distribution and conspiracy to distribute a schedule II controlled substance. The trial court subsequently found that defendant had been convicted in 2007 of distributing a controlled substance. Based on this finding, it enhanced the distribution of a controlled substance conviction from a class 3 felony to a class 2 felony and found defendant was a habitual criminal. The court then sentenced defendant to 24 years in prison for the distribution count. Applying the habitual criminal finding, the court increased the sentence on this count to 96 years in prison. On the conspiracy count, the court sentenced defendant to 12 years in prison for that class 3 felony. Again applying the habitual criminal finding, the court increased the sentence on this count to 48 years in prison, to be served concurrently with the sentence on the distribution count.

On appeal, defendant argued that the 2007 conviction did not fit the statutory definition of a conviction that the trial court could use to enhance the distribution count from a class 3 felony to a class 2 felony. Here, the mittimus and amended mittimus in the 2007 case contain a mistake: they state that defendant pleaded guilty to a class 3 felony charge, but documents in the record from the 2007 case clearly show that defendant pleaded guilty to a class 4 felony. Pursuant to C.R.S. § 18-18-405(2)(a), a trial court may only increase the level of a class 3 distribution of a schedule II controlled substance felony based on an equal or more severe felony. Therefore, the trial court erred when it relied on defendant’s prior conviction to enhance his class 3 distribution felony to a class 2 felony.

Defendant also argued that one of the habitual criminal counts, which was based on the 2007 conviction, suffered from the same statutory defect. But any error involving the 2007 conviction was harmless because vacating one of defendant’s five habitual criminal counts would have no effect on his sentence, which only requires three prior felony convictions.

Defendant further contended that his convictions and sentences on both the distribution and conspiracy counts based on the same quantum of drugs violated the Double Jeopardy Clause. The prosecution conceded this contention, noting that, even under plain error review, the trial court obviously and substantially violated defendant’s right to avoid double jeopardy.

The enhancement of defendant’s class 3 felony distribution conviction and prison sentence for that conviction were reversed. The conviction and sentence for conspiracy to distribute a schedule II controlled substance were also reversed, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/20/2018

On Tuesday, November 20, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Winston v. Allbaugh

United States v. Maxwell

Davis v. English

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.